Minister of Justice and Correctional Services v Walus

The respondent, Mr Janusz Jakub Walus, was convicted on 15 October 1993 of the murder of Mr Thembisile 'Chris' Hani and illegal possession of a firearm. The trial court sentenced him to death for murder and five years for illegal possession of a firearm. The Supreme Court of Appeal commuted the death sentence to life imprisonment on 7 November 2000 following the abolition of capital punishment in S v Makwanyane. By April 2015, the respondent had served 21 years and six months of his sentence and applied for parole. On 10 April 2015, following a hearing in November 2013, the Minister of Justice and Correctional Services decided not to place the respondent on parole at that stage and recommended a further 12-month profile. The minister recommended that the respondent participate in a restorative justice process and that the Department advise on security threats. The respondent brought an application in the Gauteng Division of the High Court, Pretoria, to review and set aside the minister's decision. Mrs Hani (the widow of the deceased) had submitted a victim impact statement which was attached to the respondent's application documents to the minister, but the respondent was not furnished with this statement and the minister did not consider it when making his decision.

• Whether the Minister's failure to consider the victim impact statement and the failure to furnish it to the respondent constituted a material procedural irregularity in terms of s 6(2) of PAJA
• Whether the Minister's decision not to grant parole was reasonable and rational
• Whether the High Court erred in substituting its own decision for that of the Minister
• Whether the matter should be remitted to the Minister for reconsideration or whether the Court should substitute its own decision
• Whether an appellate court may raise a legal point mero motu when it was not raised by the parties in the court a quo

The appeal was upheld with no order as to costs. The matter was remitted to the Minister for reconsideration and decision within 90 calendar days of the order.

Where a victim impact statement is submitted to the decision-maker considering parole and the prisoner seeking parole is not afforded an opportunity to respond to the allegations contained therein, this constitutes a material procedural irregularity under s 6(2)(b) of PAJA as it breaches mandatory procedures prescribed in s 299A of the Criminal Procedure Act and ss 42(3) and 75(4) of the Correctional Services Act. The inevitability of a certain outcome is not a factor to be considered in determining the validity of administrative action; the proper approach is to establish factually whether an irregularity occurred and then legally evaluate whether it amounts to a ground of review under PAJA. Once a ground of review has been established under PAJA, s 172(1)(a) of the Constitution requires the decision to be declared unlawful. Substitution of an administrative decision by a court under s 8(1)(c)(ii) of PAJA is only appropriate in exceptional cases; where the court does not know what representations a prisoner would have made in response to a victim impact statement, it is not in a position to substitute its own decision and the matter must be remitted.

The Court observed that an appellate court's duty is to ascertain whether the court a quo came to a correct conclusion on the case before it. Where a point of law is apparent on the papers but the parties proceed on a wrong perception of the law, and its consideration would involve no unfairness, the court is not only entitled but obliged to raise the point mero motu, otherwise it would be bound to make a decision based on incorrect law merely because a party failed to raise it due to an error of law. The Court noted the wisdom in the observation by Megarry J in John v Rees that 'the path of the law is strewn with examples of open and shut cases which, somehow, were not; of unanswerable charges which, in the event, were completely answered; of inexplicable conduct which was fully explained; of fixed and unalterable determinations that, by discussion, suffered a change.' The Court cautioned against the temptation to refuse relief on procedural grounds where a party is unmeritorious, emphasizing that procedure and merits must be kept strictly apart to avoid unfairly prejudging the merits.

This case clarifies important principles regarding procedural fairness in parole decisions, particularly for offenders serving life sentences for serious crimes. It establishes that the consideration of victim impact statements and affording the prisoner an opportunity to respond constitute mandatory and material procedures that cannot be bypassed. The judgment reinforces the principle from AllPay that procedural requirements must be considered on their own merits and not through the lens of the final outcome, and that the inevitability of an outcome is not a factor in determining the validity of administrative action. The case also clarifies the limited circumstances in which courts may substitute their own decisions for those of administrators under s 8 of PAJA, emphasizing that substitution is only appropriate in exceptional cases. It demonstrates the application of separation of powers principles in the administrative law context. The judgment also confirms that appellate courts may raise points of law mero motu where they are apparent on the papers and would involve no unfairness, even where not raised by the parties, in order to avoid decisions based on incorrect applications of law.